Tomlinson v Congleton Borough Council [2004] 1 AC 46

An eighteen-year-old visitor went to a country park containing a lake formed in an old quarry. The council prohibited swimming, displayed warnings and used rangers to discourage entry into the water, although visitors often ignored those measures. The claimant entered shallow water and attempted a dive, striking the bottom and suffering a severe neck injury. He alleged that the council should have taken further steps to keep people out, including changes to the surrounding area. The House of Lords considered whether the injury arose from a relevant premises danger and whether the law required the proposed protection.

• Does an occupier need to offer protection from obvious dangers.
• Was the danger created by the state of the premises or the conduct of the visitor/trespasser.

The House of Lords allowed the council's appeal and rejected the claim. Lord Hoffmann distinguished a danger arising from the condition of premises from the inherent risk created by an adult's chosen activity. The lake had no hidden feature making it unusually dangerous; the injury resulted from the claimant's attempted dive. The speeches also addressed whether it was reasonable to require protection against an obvious, voluntarily undertaken risk. The cost of precautions, their effect on lawful enjoyment of the park and personal responsibility were relevant. The claimant's prohibited swimming brought the 1984 Act into issue, but the court explained that visitor status under the 1957 Act would not have produced success on these facts.

Occupiers' liability does not require protection against every obvious risk an adult freely takes in a recreational activity. Tomlinson distinguishes activity-created danger from a relevant premises defect and considers the reasonableness of precautions, including their cost and effect on lawful public enjoyment.

Tomlinson is a leading authority on the limits of occupiers' responsibility for recreational accidents. Its reasoning should not be reduced to a rule that warning signs always suffice, because the source of the risk and the reasonableness of further precautions were central. Nor does it abolish protection against concealed defects or risks affecting children and vulnerable visitors. Compare Poppleton and Keown, identifying whether the danger comes from the premises or from the particular activity undertaken.